W.C. No. 4-364-828Industrial Claim Appeals Office.
August 18, 1999.
ORDER
The respondents seek review of the final order of Administrative Law Judge Atencio (ALJ) which determined the claimant sustained a compensable right shoulder injury and ordered them to pay “all necessary and reasonable medical benefits to treat” the shoulder. The respondents argue they were denied due process of law because they did not receive notice the ALJ would consider the issue of maximum medical improvement (MMI), and because the ALJ’s findings concerning causation and MMI are unsupported by the evidence. We dismiss the petition to review without prejudice.
The claimant sustained an admitted injury to his back on April 8, 1997. The treating physician placed the claimant at MMI in October 1997, and the respondents admitted liability based on a five percent whole person medical impairment.
A Division-sponsored independent medical examination (IME) was conducted by Dr. Varner on the issues of MMI and medical impairment. In a report dated March 27, 1998, Dr. Varner reported the claimant was complaining of low back and right shoulder pain. Dr. Varner stated that this is incident to an on-the-job injury of April 1997. Dr. Varner diagnosed the claimant’s shoulder injury as a Grade-II right AC sprain, and recommended symptomatic treatment, “perhaps a subacromial cortisone injection,” and an exercise program with access to a health facility. Dr. Varner concluded that “otherwise” the claimant was at MMI within an impairment rating of five percent of the whole person.
In April 1998 the claimant applied for a hearing listing the issues of compensability of the right shoulder condition and additional medical benefits. Subsequently, the claimant moved to add the issues of permanent partial disability and MMI.
Following a hearing on October 15, 1998, the ALJ entered findings of fact and conclusions of law dated November 23, 1998. The ALJ found the claimant sustained a right shoulder injury at the same time as the April 1997 back injury. Further, the ALJ “interpreted” Dr. Varner’s IME report as containing clear and convincing evidence the claimant was not at MMI for the shoulder condition. Under these circumstances, the ALJ ordered the respondents to provide “all reasonable and necessary medical benefits to treat [the claimant’s] right shoulder injury.”
On review, the respondents contend they were denied due process of law because they did not receive adequate notice the ALJ would determine the issue of MMI. In any event, the respondents contest the sufficiency of the evidence to support the ALJ’s factual findings that the claimant sustained a compensable shoulder injury, and that he is not at MMI for the shoulder injury. However, we conclude the ALJ’s order is not currently final and subject to review.
Section 8-43-301(2), C.R.S. 1998, provides that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty” may file a petition to review. An order which does not meet the statutory standard is not final and subject to our review Director of the Division of Labor v. Smith, 725 P.2d 1161
(Colo.App. 1986). An order which merely determines liability without determining the amount of benefits or penalties to be paid is not considered final and reviewable. United Parcel Services, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0540, June 24, 1999).
In light of these principles we have frequently held that an order which determines liability and awards “reasonable and necessary medical benefits” is not final and reviewable unless specific medical benefits were at issue. This is true because the respondents maintain the right to contest the reasonableness and necessity for particular medical benefits. Thus, a general award of medical benefits is insufficient to satisfy the criteria for finality. Poole v. Rocky Mountain Nurses, W.C. No. 4-349-438
(April 13, 1998); Gonzales v. Public Service Co., W.C. No. 4-131-970 (May 14, 1996).
Here, the ALJ’s order merely determined the respondents are liable for the claimant’s right shoulder condition, awarded reasonable and necessary medical benefits, and reserved all other issues for future determination. Our review of the record does not reveal the claimant requested any specific medical benefits, or that the ALJ considered specific medical benefits. It is true that Dr. Varner made recommendations concerning treatment, but he is merely a Division IME physician and does not control the course of the claimant’s treatment. Under these circumstances, the ALJ’s order is not final and reviewable.
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated November 23, 1998, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ David Cain
__________________________________ Bill Whitacre
NOTICE
An action to modify or vacate the Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1998 Cum. Supp.).
Copies of this decision were mailed August 18, 1999 to the following parties:
Silverio Rosas, 5115 Tejon St., Denver, CO 80221
John DiPaulo, DDC Interiors, Inc., 191 University Blvd., #348, Denver, CO 80206
Transportation/CNA Insurance, Attn: Mary Ann Slick, P.O. Box 17369, Denver, CO 80217
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
J. Barton Maxwell, Esq., 950 17th St., 21st Floor, Denver, CO 80202-5528 (For Respondents)
By: A. Pendroy